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Cheerleaders: ‘F-L-S-A! The Law Says You Have to Pay!’

February 1, 2016

A number of professional cheerleaders have filed wage and hour lawsuits against high-profile employers alleging they were not paid at least minimum wage for performing at games and team events. Employers should review their wage and hour practices to make sure they stay in the game and avoid a lawsuit.

Cheerleader Sues the Bucks

In late September, a former cheerleader filed a lawsuit alleging the Milwaukee Bucks violated state and federal minimum wage laws. She claims the Bucks paid her “about half” the minimum wage of $7.25 and forced her to work out and make appearances without pay. The Bucks allegedly paid cheerleaders a flat rate of $65 per game, $30 per practice, and $50 per non-game appearance. Cheerleaders had to arrive 2 1/2 hours before each game, rehearse five to ten hours per week, and work out for 15 to 20 hours per week. The cheerleader’s attorney claims that she was paid roughly $3.50 per hour and that cheerleaders were not paid overtime if they worked more than 40 hours per week. According to the attorney, “They are indentured servants with pom poms.”

The cheerleader filed for class certification, meaning that additional plaintiffs could join the lawsuit against the Bucks. To avoid litigation, employers should compare their wage and hour practices to the Bucks’ alleged practices. A wage and hour lawsuit is no laughing matter for any employer.

The lawsuit follows on the high heels of the Tampa Bay Buccaneers, Oakland Raiders, and Cincinnati Bengals, agreeing to pay former cheerleaders for alleged wage and hour violations rather than face a trial. With all the “rah-rah” success cheerleaders are having suing NFL teams, it was natural that the wave would move to the NBA. The lawsuit filed against the Bucks appears to be the first Fair Labor Standards Act (FLSA) claim filed against a professional basketball team, but we expect to see more in the near future.

A Review of the FLSA

A refresher on federal and state wage and hour laws may be in order. The FLSA establishes a minimum wage of $7.25 per hour and requires employers to pay overtime for all hours worked over 40 in a workweek. The Act does not define “work” or “workweek,” but the U.S. Supreme Court has interpreted those terms broadly. The term “work” is defined as physical or mental exertion (whether burdensome or not) that is controlled by the employer and is completed for the employer’s benefit. The definition can include time spent getting ready for work. A workweek includes all time an employee is required to be on duty. In other words, compensable work occurs when:

The employee performs activities for the employer’s benefit.

The employee performs her principle activities or activities that are closely related.

The employer knows or should know that the employee is performing work.

The activities are not de minimis (insignificant).

Some employees are exempt from the FLSA’s requirements. Those employees include executive, administrative, and professional employees; salespeople; farmers; and some recreational employees. An employer that violates the FLSA can be liable for back pay, liquidated damages, and attorneys’ fees.

Wisconsin has similar laws that set the minimum wage of $7.25 per hour and require employers to pay overtime to employees who work more than 40 hours per workweek. Employers can face civil liability and penalties for violating Wisconsin’s wage and hour laws.

NFL Cheerleaders Sue

In the past year, professional cheerleaders have filed FLSA claims against the Tampa Bay Buccaneers, Cincinnati Bengals, Buffalo Bills, New York Jets and Oakland Raiders. These lawsuits generally allege the same pay practices. The cheerleaders allege that the teams paid them a low flat rate for appearing at games and other events. They claim that the teams forced them to appear for hours of practice but did not pay them for their time. They also claim that they were required to practice or perform in full makeup and with their hair styled but were not compensated for time spent getting ready. The cheerleaders make dramatic assertions that they were paid less than $4 per hour when practice, preparation, and game time is added together.

The teams appear to have settled with the cheerleaders fairly quickly. The Raiders agreed to pay the complaining cheerleaders $1.25 million to settle the lawsuit within eight months of its filing. Likewise, the Buccaneers agreed to pay their cheerleaders $825,000. Recently, the Bengals agreed to settle with their cheerleaders for an undisclosed sum. Also, the teams have changed their practices to pay at least minimum wage for each hour cheerleaders spent working or preparing for work. In addition, the state of California recently passed legislation that requires professional sports teams to consider and pay cheerleaders as full-fledged employees.

Bottom Line

A wage and hour lawsuit can hit an employer like a scissors kick to the face. The cheerleaders’ lawsuits allege egregious violations of wage and hour laws, and they are a reminder to employers to review their practices. To stay in the game, regularly ask yourself:

Are all of my employees properly classified as exempt or nonexempt?

Are all of my nonexempt employees recording all work time, including time legitimately spent preparing for work?

Are all of my nonexempt employees paid at least minimum wage for all hours worked?

The bottom line: Wage and hour lawsuits are expensive, but they can be easily avoided with planning, practice, and teamwork. Now that’s something employers can really cheer about.

This article, slightly modified to note recent updates, was featured in the November 2015 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Saul Glazer and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

For more information about "Cheerleaders: ‘F-L-S-A! The Law Says You Have to Pay!’," contact Tyler K. Wilkinson at twilkinson@axley.com or 608.283.6783.

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